Excerpt:.....against him.;the petitioner was prejudiced by the unilateral proceedings drawn up by the learned magistrate in contravention of the provisions of section 481(1) cr. p.c.;(b) criminal procedure code - section 486(1) & (2) and appellate court can alter or reverse conviction but cannot order retrial.;the appellate court had, in this case, only the power to alter or reverse the finding of conviction, or to reduce or reverse the sentence appealed against, but it could not wrest the provision of clause (d) of sub-section (1) of section 423 and make an order for the retrial of the case. - - he has however accepted the appeal and set aside the sentence on account of the illegality in the trial (mentioned above). in law, that was really an order of reversal of the finding of..........and treated the sub divisional magistrate in an uncivilised manner and used indecent language. the learned magistrate took cognizance of the offence under the provisions of section 480 cr p.c. and sentenced the accused to a fine of rs. 200/. he did not, however, record a finding about the commission of an offence under any particular provision of the indian penal code.3. the petitioner preferred an appeal, which was heard and decided by the learned additional sessions judge as mentioned above. the learned judge came to the conclusion that no opportunity had been given to the accused to make a statement, so that there was no compliance with the provisions of section 481(1) cr.p.c. and that had prejudiced the trial. he therefore allowed the appeal, set aside the sentence which had been.....

Judgment:

P.N. Shinghal, J.

1. This is a petition by the accused for a revision of the appellate order of learned Additional Sessions Judge No. 1, Jodhpur, dated October 23, 1972, by which be has sent the case back to the Sub-divisional Magistrate of Phalodi for 'trial in accordance with law'.

2. The allegation against the accused Pyarelal was that while Sub-divisional Magistrate Roshan Lal was holding his court on September 4, 1972. and was dealing with a criminal case, he entered the court room at about 3.15 p. m. and treated the Sub divisional Magistrate in an uncivilised manner and used indecent language. The learned Magistrate took cognizance of the offence under the provisions of Section 480 Cr P.C. and sentenced the accused to a fine of Rs. 200/. He did not, however, record a finding about the commission of an offence under any particular provision of the Indian Penal Code.

3. The petitioner preferred an appeal, which was heard and decided by the learned Additional Sessions Judge as mentioned above. The learned Judge came to the conclusion that no opportunity had been given to the accused to make a statement, so that there was no compliance with the provisions of Section 481(1) Cr.P.C. and that had prejudiced the trial. He therefore allowed the appeal, set aside the sentence which had been passed by the learned Sub divisional Magistrate, ordered the refund of the fine and directed that the case shall be sent for retrial as aforesaid. The accused feels aggrieved because, according to him, a retrial can not be ordered in view of the provisions of Section 486(2) Cr.P.C.

4. It cannot be doubted, and has not been disputed, that the requirement of Section 481(1) Cr.P.C. for recording the statement (if any) made by the offender, is mandatory. The proceedings which were drawn up by the learned Sub-divisional Magistrate show, however, that he convicted & sentenced the petitioner without recording his statement and without giving him any other opportunity to clarify the allegation against him. The question whether he had committed any offence of the nature mentioned in Section 480 Cr.P.C. was a question of fact, and the accused had a right to make a statement in regard to the allegation that he was guilty of contempt of court. His leraned Counsel has argued that if such an opportunity had been given, the petitioner would have shown how it was not permissible for the learned Magistrate to adopt the procedure laid down under Section 480 Cr. P.C. because he was not holding any court, but was in his chamber, at the time of the alleged incident. It cannot be doubted, therefore, that the learned Additional Sessions Judge was justified in taking the view that the petitioner was prejudiced by the unilateral proceedings drawn up by the learned Magistrate in contravention of the provisions of Section 481(1) Cr.P.C. A similar view has been taken by this court in Chakrapani v. State 1950 RLW 225.

5. The question then is whether it was permissible for the learned Additional Sessions Judge to remand the case for retrial

6. Section 486 provides for appeals from convictions in contempt cases. Sub-section (1) of that section gives a right of appeal, and specifies the court to which it has to be addressed. It is rot disputed that the present petitioner had a right of appeal to the Court of Session, and there is no controversy in regard to the competence of the learned Additional Sessions Judge to dispose it of The powers of the court of appeal have been stated in Sub-section (2) of Section 486 Cr P.C. as follows:

486 (2). The provisions of Chapter XXXI shall, so far as they are applicable, apply to appeals under this section, and the Appellate Court may alter or reverse the finding, or reduce or reverse the sentence appealed against.

The provisions of Chapter XXXI of the Code of Criminal Procedure are therefore applicable to an appeal under Section 486 (1) Cr.P.C. to the extent mentioned in Sub-section (2). These powers have, iater alia, been limited by providing that the appellate court may 'alter or reverse the finding, or reduce or reverse the sentence appealed against'. The provisions of Section 423 Cr P.C., which form part of Chapter XXXI, are not therefore applicable to the extent of the limitation imposed by Sub-section (2) of Section 486. Thus the provisions of Clauses (c) and (d) of Sub-section (1) of Section 423 are not applicable to such an appeal. In other words, it is not permissible, in view of the express provisions of Sub-section (2) of Section 486, for the court, while disposing of an appeal under Sub-section (1) of that section, to invoke the power under clause(3) of Sub-section (1) of Section 423 and to make any consequential or incidental order that may be just and proper in the circumstances of the case. That, in turn, leads to the irresistible conclusion that the appellate court had, in this case, only the power to alter or reverse the finding of conviction, or to reduce or reverse the sentence appealed against, but it could not wrest the provision of Clause (d) of Sub-section (1) of Section 423 and make an order for the retrial of the case.

7. If the learned Judge had appreciated his limitations, as the court of appeal, under Sub-section (2) of Section 486, he would have realised that all that was permissible for him was to alter or reverse the finding of conviction, or to reduce or reverse the sentence appealed against. He has however accepted the appeal and set aside the sentence on account of the illegality in the trial (mentioned above). In law, that was really an order of reversal of the finding of conviction as well as the sentence appealed against, within the meaning of Sub-section (2) of Section 486, because it was not permissible for the learned Judge to make any other order on the view he had taken about the illegality of the trial There is therefore justification for the argument that the impugned judgment of the appellate court has the effect of acquitting the accused of the offence of which he was convicted by the learned Sub divisional Magistrate. As that acquittal has not been set aside, and remains in force, the accused is not liable to be tried again for the same offence by virtue of Section 403 Criminal Procedure Code.

8. I have not had the benefit of following any decision which could be said to be on all four with the present case. The leraned Counsel for the petitioner has, however, made a reference to State v. Tribeni Sharma 0044/1960 : AIR1960All214 , and to the Full Bench decision in State v. Sukumar Chakraborty : AIR1965Cal622 in which that decision has been followed. The first of these was a somewhat different case, for the question for consideration there was that related to the maintainability of the appeal as the sentence was of a fine below Rs. 50/. While considering the scope of Section 486(1), with reference to Section 423 Cr.P.C., it was held by their Lordships that, in contrast to Section 423 which defines the power of the appellate court in appeals under Chapter XXXI, the appellate court, in exercise of its powers under Sub-section (2) of Section 486, cannot order a retrial. As has been shown, I am in respectful agreement with this view. A similar view has been taken by the Full Bench of the Calcutta High Court in State v. Sukumar Chakraborty : AIR1965Cal622 after considering the reasoning in Tribeni Sharma's case : AIR1965Cal622 .

9. The leraned Counsel for the non-petitioner has argued however that the relevant provisions of Sub-section (2) of Section 486, to which reference has been made above, are quite similar to those of Clause (c) of Sub-section (1) of Section 423 in as much as that case also provides that the appellate court may, in an appeal from any other order (not being an appeal from an order of acquittal or conviction), 'alter or reverse such order'. He has urged that those provisions of Clause (c) have been held to justify the making of an order of retrial in Bhagwat Singh and Ors. v. Emperor AIR 1926 All 403, Subag Singh v. Emperor AIR 1942 Lah 84, Bhaiyalal Khubchand and Ors. v. King Emperor AIR 1949 Nag 222, Prakasa Reddi and Ors. v. Jonnala Pitchireddi and Anr. : AIR1955AP55 , and Ram Swaroop and Ors. v. State and Anr. 1957 Cr.L.J. 269. I have gone through all these cases. Three of them were cases in which appeals were directed against orders made under Section 107 Cr.P.C, one was a case of appeal against an order under Section 110 Cr P.C., and in the remaining case there was an appeal against an order under Section 145 Cr. P.C. All of them therefore squarely fell within the purview of Clause (c) of Sub-section (1) of Section 423 and it was held that it was permissible for the court of appeal to order a fresh inquiry. But such an inquiry was ordered, and was held to be valid, as an 'incidental order'. As has been pointed out, it was permissible to make such an 'incidental' or 'consequential' order in view of the express provision of Clause (d) of Sub-section (1) of Section 423 so that in those cases the appellate court was well within its power in ordering a fresh enquiry. In fact there was specific reference to the provision of Clause (d) of Sub-section (1) of Section 423, while ordering a fresh inquiry, in Subhag Singh's case AIR 1942 Lah 84, and the view taken there was followed in Bhaiyalal Khubchand and Ors. v. King-Emoeror AIR 1949 Nag 222, In Prakasa Reddi and Ors. v. Jonnala Pitchireddi and Anr. : AIR1955AP55 also the case was remitted in exercise of the powers under Clauses (c) and (d) of Sub-section (1) of Section 423. As has been shown. it was not permissible for the learned Additional Sessions Judge, in the present case, to invoke the provisions of Clause (d) of Sub-section (1) of Section 423 for the purpose of ordering a retrial of the accused as his appeal had to be disposed of in accordance with the provisions of Sub-section (2) of Section 486.

10. In the view I have taken, the revision petition is allowed, the impugned order of the learned Additional Sessions Judge ordering the retrial of the accused is set aside, and it is directed that the accused shall be deemed to have been acquitted of the offence of which be has been convicted by the learned Sub-divisional Magistrate.